The Supreme Court’s Cross to Bear

Posted on Apr 30, 2010

By Ruth Marcus

I am so going to miss Justice John Paul Stevens.

The latest reminder came as I was reading the Supreme Court’s ruling resurrecting—pardon the pun—Congress’ effort to keep an eight-foot-tall cross erected on federal land in the Mojave Desert as a memorial to World War I soldiers.

The most obviously maddening part of the decision was the argument by three justices—Anthony Kennedy, Chief Justice John Roberts and Samuel Alito—that the cross is not an exclusively religious symbol

A “Latin cross is not merely a reaffirmation of Christian beliefs,” Kennedy insisted. “It is a symbol often used to honor and respect those whose heroic acts, noble contributions and patient striving help secure an honored place in history for this nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”

Two other justices, Antonin Scalia and Clarence Thomas, argued that the person challenging the cross no longer had standing to complain about it, because the latest phase of the dispute involves Congress’ authority to swap the land, on which the cross stands, with the Veterans of Foreign Wars for another parcel. It’s a fair bet that the justices would have shared Kennedy’s views on the merits of the dispute; in oral argument in the case, Scalia scoffed at the notion that the cross might be offensive as a symbol honoring all war dead.

Reasonable people can differ about secular candy canes or secular Santas. But a cross conveys an inherently, exclusively religious message. On a Christian grave, it is an appropriate symbol of belief in Jesus as God’s son who died on the cross. On a Jewish grave it is a sacrilege.

Attempting, as Kennedy does, to drain the cross of its purely religious significance shows little respect for Christianity, and other religions as well. As Kennedy himself noted, people troop up to the cross to hold Easter sunrise services—not bar mitzvahs. (OK, I added the bar mitzvah part.)

Justice Stevens, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, demolished this argument. (Justice Stephen Breyer dissented on other grounds.) But you don’t need a Justice Stevens to know that the federal government’s involvement in enabling the continued presence of the cross represented, as Stevens said, “continued endorsement of a starkly sectarian message.”

No, the wonderful part of the Stevens dissent involved a more subtle, but no less maddening point: the plurality’s situational jurisprudence when it comes to congressional deference.

“Congress’ prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations,” Kennedy wrote. And: “Respect for a coordinate branch of government forbids striking down an act of Congress except upon a clear showing of unconstitutionality.”

Where was this respect in the Citizens United case, when the court went out of its way to overturn a part of the McCain-Feingold campaign finance law on constitutional grounds—a step that Citizens United itself did not press until the court invited it to?

As Stevens tartly pointed out, McCain-Feingold was the product of extensive hearings and debate in an area—campaign finance rules—of core congressional competence. By contrast, the provision authorizing the land swap in the cross case was “buried in a defense appropriations bill and, so far as the record shows, undertaken without any deliberation whatsoever.”

The conservative justices’ respect for Congress seems to have an awful lot to do with what the justices think about the outcome. This is not judicial restraint. It’s selective judicial activism.